Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

DOJ Notifies Defendants of Warrantless Wiretap Evidence

This is a very interesting development that could lead somewhere important. The Department of Justice is now informing defendants if any evidence in their case was procured through a warrantless wiretap. Why is this important? Because it gives them standing to challenge illegal surveillance.

The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional…

The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.

The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.

A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.

This could be very important. Now the government can’t challenge the standing of the person challenging the illegal surveillance because they’ve already admitted that they used evidence obtained through a warrantless wiretap. This allows a challenge to the government’s actions on the merits. Why the sudden shift in position by the Obama administration? Are they trying to set up a valid legal challenge to their own executive authority? That would be quite the opposite of what they’ve done since taking office. We’ll find out when such a challenge hits the appeals court. If the DOJ tries to kill the case using the State Secrets Privilege, as they’ve done in every civil challenge to their surveillance authority, the answer will clearly be no.

Why the sudden shift in position by the Obama administration? Are they trying to set up a valid legal challenge to their own executive authority?

My cynical side says he’s doing the opposite; trying to shut down once and for all any future legal challenge to executive branch authority, by way of a SCOTUS precedent. He’s getting a case in front of SCOTUS now, while its conservative and very pro-surveillance, knowing that at least for the next couple of years, they will likely rule that such eavesdropping IS constitutional.

I’ve hoped that this was actually the long-range plan, using the “oppose Obama on everything” strategy to force a court decision. Stopping warrantless wiretapping by executive order could be overturned by executive order the next time the crime syndicate got a candidate into office. Not that illegality stopped them either…

My *guess* is that his support for these various unconstitutional executive over-reaches is driven by the lobbying done by the career staffers at the agencies. They presumably have dossiers carefully constructed full of “if you don’t let us have , then bad thing would’ve happened” for all the different powers they want.

I wouldn’t be surprised if there was also the implication that some public leaks along the lines of “we told him we needed to do this and he didn’t” would happen if he said no.

I can’t imagine that Obama came in to office and came up with the state secrets privilege stuff on his own. It’s possible, but I think it’s more plausible that the staffers around him pushed for it.

Given that belief, it’s easy for me to imagine him feeling uncomfortable with something but not caring enough to force the issue. And then seeing an opportunity to get it rejected like this? Just speculating.